A few years ago, the November Coalition,
a national organization of drug war prisoners and advocates (http://www.november.org),
released a CD containing verbal commentary by some of their members.
The disc wasn't easy listening; it contained tale after tale of woe and
injustice, spoken from behind prison walls for the outside world to hear.

Many of the voices have stuck in my mind
since that time, but it was the facts of one of their stories that struck
me most of all. It was the story told by a woman POW, serving more
than 20 years in federal prison, describing the sentencing hearing at which
a judge very, very carelessly decided her fate.

What happened was that she had been convicted
of having been involved in a drug operation -- pretty minor involvement,
by most people's standards -- but the way the law works, the conviction
for her supposed offense and the assigning of a quantity of drugs involved
in the offense are two different things. A jury had been persuaded
that she was guilty at some level, but had no role in determining just
how guilty.

That question was decided by the judge,
in consultation with the prosecutor and her defense attorney. What
happened was that the defense attorney put out one quantity, and the prosecutor
put out another. The judge, not having detailed information with
which to decide between the two, simply took a guess, picked a number somewhere
between the two, and sentenced her based on that.

This is the issue at stake in the recent
Apprendi decision and related cases flowing out of it. While it took
a jury of her peers, deciding she was guilty beyond reasonable doubt, to
get her there, it took only one judge, acting under the far less exacting
legal standard of a preponderance of evidence that applies during sentencing,
to decide how many years or decades of her life would be stolen by the
legal system. The extraordinarily casual and careless way in which
it happened in this case shows exactly why this framework, ensconced into
law with the enactment of federal sentencing guidelines in the mid-1980s,
is unwise and unjust.

And unconstitutional as well. At
least that is what the majority on the Supreme Court felt when deciding
Apprendi, in which the defendant had been convicted by a jury for a gun
crime, but had his sentence enhanced when a judge alone, not the jury,
decided it was also a hate crime. While Justices Thomas and Scalia
have not historically been great friends to the cause of defendants' rights,
in this case they insisted in their majority opinion that the constitutional
principle of trial by jury should protect defendants from seeing their
sentences enhanced by facts that a jury never got to decide, at least if
such enhancements extend a sentence beyond the maximum length that the
statute could otherwise impose without those facts.

But the problem actually goes far beyond
that. The notorious Judge Posner pointed out in an editorial in the
magazine of the National Association of Criminal Defense Lawyers a few
years ago that under federal law, defendants can actually be sentenced
on the basis of charges for which they have been acquitted! If a
defendant is convicted on any count in a drug case, then all the drug activity
of which he or she was accused is considered fair game at sentencing, even
if the jury felt those counts weren't proven beyond a reasonable doubt.
There was a case in which a low-level drug defendant had made careless
and false boasts of having collaborated with Manuel Noriega. Though
in truth he had no connection whatsoever with the deposed Panamanian dictator
and convicted drug trafficker, prosecutors brought up his idle talk during
trial. It then became fair game at sentencing, and he wound up having
his sentence dramatically enhanced because of it.

Dissenting in the Apprendi case, Justices
Breyer and O'Connor warned that the implications of the decision were far-reaching
and could call into question thousands of cases and the legitimacy of not
only the federal guidelines but similar schemes at the state level as well.
Yet that is reverse logic. Constitutional rights, and fundamental
principles of justice, stand above all such concerns; the fact that a just
and proper application of constitutional law might have such ramifications,
has no relevance to whether that application is correct. Rather,
the possibility that our drug sentencing regime might be unconstitutional
-- and to many of us, the certainty that it is unjust -- is all the more
reason to move ahead and begin to address the historic wrong that has been
perpetrated on thousands of people in the name of the drug war.

To do so is to implicitly admit that such
a wrong has occurred, and that the people who allowed it, much less created
it, were also wrong. Perhaps that is why the usually liberal Breyer
joined with the conservative O'Connor to write such a dissent: Breyer
was a member of the original commission that wrote these guidelines, with
all the flaws that they contain. Yet others have admitted to as much
-- for example, Rep. Charles Rangel, who supported the harsh crack cocaine
mandatory minimums in 1986 when they were passed, but who has since taken
to the floor of Congress itself to admit his mistake and call for change.

The courts should not shirk their duty
of enforcing the Constitution, even when the ramifications in the real
world of doing so cause trepidation in the hearts of the enforcers.
It's time to right the wrongs: Let justice be done.

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